Tag: visa waiver

Travel to the United States in 2016: The Year of Fear – Restrictions on the Visa Waiver Program (VWP) ESTA

On January 21, 2016, the United States began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.

Nationals of Visa Waiver Program countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011, will no longer be able to participate in the Visa Waiver Program.  In addition, nationals of Visa Waiver Program countries who are also nationals of Iran, Iraq, Sudan, or Syria will not be able to participate even if they have not visited or been present in those countries. 

There will be limited exceptions for individuals who are traveling on behalf of international organizations, regional organizations and subnational governments on official duty; who are there on behalf of a humanitarian NGO on official duty; or are journalists traveling for reporting purposes.  Certain individuals traveling to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action of July 2015 and other individuals traveling to Iraq for legitimate business related purposes may be exempt as well.

Currently, thirty-eight (38) countries are participants in the Visa Waiver Program:

Andorra

Hungary

New Zealand

Australia

Iceland

Norway

Austria

Ireland

Portugal

Belgium

Italy

San Marino

Brunei

Japan

Singapore

Chile

Republic of Korea

Slovakia

Czech Republic

Latvia

Slovenia

Denmark

Liechtenstein

Spain

Estonia

Lithuania

Sweden

Finland

Luxembourg

Switzerland

France

Malta

Taiwan**

Germany

Monaco

United Kingdom*

Greece

The Netherlands

Individuals impacted may still travel to the United States as visitors for business or pleasure, if they successfully complete the normal process for applying for a non-immigrant visa at a United States Embassy or Consulate, as others who are not nationals of Visa Waiver Program countries, regularly do.  However, there certainly is concern that there will be backlogs and delays associated with the visa application process.

The Year of Fear

The real question which yet remains unanswered is precisely how will this change be implemented.  Customs and Border Protection (CBP) of the United States Department of Homeland Security advises that it will be modifying its Visa Waiver Program (ESTA) questionnaire to identify individuals who might be ineligible and provide them an opportunity to explain why an exemption might be applicable.  How such applications will be processed and assessed remains unknown.

In addition, it is not clear how implementation will take place with reference to those individuals who are already ESTA Visa Waiver Program participants.  The inference is, that they will be notified, perhaps by e-mail, but it is unclear.  Accordingly, it would make sense for those, who are subject to these new restrictions, to be prudent and simply and proactively apply for visas at appropriate American Embassies or Consulates, or at the very least, reach out to CBP.  The CBP website is www.cbp.gov and the CBP Information Center can be reached at www.cbp.gov/contact.

Canadians and Americans

Canadians are generally visa exempt but do not participate in the Visa Waiver Program, and accordingly these provisions are not applicable to them.  Of course, the United States imposes no  restrictions with reference to United States citizens, but one can anticipate that there might be in the coming months, restrictions or, backlash, or reaction from other countries.

More to Come – Passport Restrictions

Beginning April 1, 2016, passports must be electronic  and fraud resistant, and contain additional biographic and biometric information not previously required.  In addition to being machine readable, passports must contain an electronic chip that stores biographic data, biometric identifier, a digital signature and a unique chip identification number.

In addition, Visa Waiver countries by October 1, 2016  must have the capability to validate passports at key points of entry with heightened ability to screen travelers.

So what does the rest of 2016 hold for us?  It looks like it will be a battle between those forces that would like to see this be a year of hope, as compared to those who will settle for it being a year of fear.  Each has a legitimate agenda.  We are a compassionate country that  wants to present a welcome face to visitors, business persons, refugees and those in need.  But, on the other hand, we certainly do have much to fear from those who would be very happy to take advantage of our benevolence and of our open society to do harm.

Ultimately, I think our security concerns will predominate, but hopefully, we will find a sensible balance and equilibrium as time goes by.

Article By David Grunblatt of Proskauer Rose LLP
© 2016 Proskauer Rose LLP.

Visa Waiver Program Changes Now Being Implemented

visaVWP nationals who have visited Iran, Iraq, Sudan, or Syria since March 1, 2011, or who hold dual nationality with one of the countries are no longer eligible for the VWP.

The United States on January 21, 2016, began to implement changes to the Visa Waiver Program (VWP) that were mandated under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). Under the Act, which was included as an amendment to the December 18, 2015, omnibus spending bill (H.R. 2029), certain individuals are no longer eligible to travel or be admitted into the United States under the VWP. The affected are

  • nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country) and

  • nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

Individuals who are ineligible for the VWP are still eligible to apply for a B-1/B-2 visitor visa at a US embassy or consulate. Individuals who need a US visa for urgent business, medical, or humanitarian travel to the United States may be eligible for expedited visa processing at a US embassy or consulate.

A waiver of these restrictions may be granted on a case-by-case basis by the secretary of homeland security if he determines that such a waiver is in the interests of US law enforcement or national security. Procedures for seeking a waiver are not currently available, but will presumably be published in the future. Waivers may be available for

  • individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of international organizations, regional organizations, and subnational governments on official duty;

  • individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of a humanitarian nongovernmental organization on official duty;

  • individuals who traveled to Iran, Iraq, Sudan, or Syria as a journalist for reporting purposes;

  • individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and

  • individuals who have traveled to Iraq for legitimate business-related purposes.

The VWP allows citizens of participating countries to travel to the United States without a visa for stays of 90 days or less. Travelers must be eligible to use the VWP and have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel. ESTA approval is issued by US Customs and Border Protection through the ESTA portal. ESTA will usually inform a traveler within one to two days whether his or her application has been approved, after which the traveler may purchase a plane ticket and travel to the United States.

Beginning January 21, 2016, travelers who currently have valid ESTAs and who have previously indicated that they hold dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked. However, it is unclear how government agencies will implement revocations for individuals who have traveled to any of the four countries since March 1, 2011.

Individuals whose ESTAs are being revoked should receive notification that that they are no longer eligible to travel under the VWP; however, revocation can occur without notice. All individuals should confirm that their ESTAs remain valid prior to making final travel plans by checking the US Customs and Border Protection ESTA website.

A person whose ESTA is revoked remains eligible to travel to the United States but will first need to obtain a valid nonimmigrant visa issued by a US embassy or consulate. Travelers affected by these new rules should apply for a US nonimmigrant visa well in advance of desired travel to minimize the chance of delays. The visa application process requires every individual traveler to complete an online visa application. Such travelers will be required to appear for an interview and obtain a visa in their passports at a US embassy or consulate before traveling to the United States. Individuals who will require a visa should check the website of the US embassy in their country of residence for instructions on how to apply for the visa. Visa processing times range from as little as one week to several weeks for an appointment, depending on the specific embassy or consular office.

Canadian citizens are visa exempt and are not participants in the VWP; thus, the new restrictions do not apply to Canadian citizens who have dual nationality in one of the specified countries.

Article By Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton &
Tracy Evlogidis of Morgan, Lewis & Bockius LLP

© 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Year End Brings Major Changes to US Visa Waiver Program

Included in the 2016 Consolidated Appropriations Act (HR 2029), signed into law on December 18, 2015, were significant changes to the Visa Waiver Program (VWP). These changes will require “e-passports” of all VWP travelers and additional security standards. This follows “enhancements” to the program announced by the Obama Administration at the end of November.

The VWP permits visa-free travel for 20 million visitors per year to the United States for citizens of 38 program partner countries around the world. VWP visitors are admitted to the US as tourists or business visitors for 90 days. VWP countries include those in Western Europe, Australia, Chile, Japan, New Zealand, Singapore, South Korea and Taiwan. Every prospective VWP traveler undergoes counterterrorism screening and must receive approval through DHS’ Electronic System for Travel Authorization (ESTA).

The Consolidated Appropriations Act imposes new restrictions to VWP eligibility for certain individuals who:

  1. Have been present in Iraq, Syria, Iran or Sudan (or other countries designated by the Secretary of Department of Homeland Security (DHS) as supporting terrorism or countries “of concern” as designated by the Secretary) at any time on or after March 1, 2011. The law exempts those performing military service in the Armed Forces of VWP countries or those who carry out official duties in a full-time capacity in the employment of a VWP country government. DHS may also wave exclusion from the VWP program if it would be in the law enforcement or national security interest of the US.

  2. The Act also excludes VWP individuals who are nationals of Iraq, Syria, Iran or Sudan.

  3. All participating VWP countries must issue electronic- and machine-readable passports.

These new restrictions are more expansive than may be apparent and could result in unintended consequences for not only nationals of VWP countries, but US citizens, as well. It is important to note, nationality typically depends on the laws of the designated country. For example, an individual born in Iran but holding German nationality and a German passport may now be excluded from the VWP even if they have not visited Iran for many years and does not possess an Iranian passport.

As the impact of these changes play out over the next several weeks and months, we could see retaliation by VWP countries that restrict visa waiver travel for certain US citizens. Stay tuned and Happy New Year.

ARTICLE BY Gregory A. Wald of Squire Patton Boggs (US) LLP
 © Copyright 2015 Squire Patton Boggs (US) LLP

Employers’ Immigration Law Update – September 2014

Jackson Lewis Law firm

ICE Levies $2M Fine against Hotel for I-9 Related Violations

A Salt Lake City-based hotel will have to pay nearly $2 million for hiring unauthorized workers, including illegal aliens. The hotel will avoid criminal prosecution in exchange for its full cooperation with a U.S. Immigration and Customs Enforcement investigation and for taking action to correct its hiring practices. According to the non-prosecution agreement, several lower-level employees and mid-level managers conspired to rehire unauthorized workers amidst an administrative audit of I-9 employee verification forms that began in September 2010. The hotel was notified that 133 employees were not authorized to work in the United States; however, the conspirators created three temporary employment agencies, essentially shell companies, to rehire 43 of the unauthorized, and most of the workers returned under different names using fraudulent identity documents.

$300K for H-2B Violations

According to a Department of Labor announcement, the agency has charged a landscaping company with violating federal law by failing to hire U.S. workers, and for underpaying temporary foreign workers. The company will pay $280,000 in back wages to 80 workers and nine job applicants and $20,000 in civil money penalties.

Immigration Reform Update

With comprehensive immigration reform legislation no longer a realistic possibility for the foreseeable future, advocates for reform have shifted their focus to executive actions the President may take unilaterally to implement changes in immigration policy.

The President reportedly is considering broad use of executive action, granting relief potentially to up to 6 million undocumented individuals, similar to what has been provided under the administration’s Deferred Action to Childhood Arrivals program (DACA).

Building off of DACA, the President has directed the Department of Homeland Security to review the administration’s immigration enforcement policies and recommend additional changes, possibly expanding the deferred action and work authorization to family members of U.S. citizens and lawful U.S. residents. The administration reportedly also is looking at possible changes to current law and regulation that could benefit employers.

Any unilateral action by the administration likely will be controversial.

Owner Liable for H-1B, J-1 Costs

The owner of several medical clinics is personally liable for back wages and the costs of physicians’ H-1B visas and J-1 waivers, the Court of Appeals for the Sixth Circuit has ruled. Kutty v. DOL, No. 11-6120 (6th Cir. Aug. 20, 2014). The Court held Dr. Mohan Kutty and his medical clinics violated H-1B provisions by having physicians cover the costs of their own H-1B visa petitions and related J-1 visa waivers.